NSAC's Blog

EPA’s Halloween Surprise – Another CAFO Comment Period

November 2, 2012

On October 31, 2012, the EPA announced yet another round of comments on the Clean Water Act regulation for Concentrated Animal Feeding Operations (CAFOs). This time, EPA has issued a notice that it is reviewing, under Section 610 of the Regulatory Flexibility Act, the Clean Water Act CAFO regulation as issued in 2003.

The Regulatory Flexibility Act requires that a federal agency review the impacts of a regulation on “small entities” within 10 years of the regulation’s promulgation. An agency may use the review to determine whether the regulation should be continued without change, or should be amended or rescinded, in order to minimize any significant impact of the rules upon a substantial number of small entities consistent with the stated objectives of applicable statutes. Note that this regulation was revised in 2008 and 2010 in response to litigation.

The definition of “small entities” for livestock and poultry production is determined by the federal Small Business Administration based on the amount of annual receipts (or gross revenue) for different types of animals. As if often the case, using Small Business Administration definitions created for industry do not translate very well into agriculture much less into any pollution potential metrics.

In its analysis of the impacts on small businesses prepared during the development of the 2003 CAFO regulation, EPA estimated that about 6,200 CAFOs affected by the regulation were small businesses, accounting for 40% of all affected CAFO facilities. Among large CAFOs, about 2,330 operations were small businesses, mostly in the poultry broiler sector. Among medium CAFOs, about 3,870 operations were small businesses (accounting for the majority of operations in that size category), with most of those facilities in the hog, dairy, and broiler sectors.

In its announcement, EPA is seeking comment on:

whether there is a “continued need” for the CAFO regulation;

the nature of complaints received on this regulation;

the complexity of the regulation;

the extent to which the rule overlaps, duplicates, or conflicts with other federal, state, or local government regulations; and

the degree to which technology, economic conditions, or other factors have changed in the area affected by the regulation.

EPA will accept comments until December 31, 2012. Comments may be submitted through the federal Regulations.gov website. The comments should be identified by Docket ID No. EPA-HQ-OW-2012-0813. Note that your comments should address the 2003 regulation but comments may also refer to the effects on CAFOs resulting from the changes made by the 2008 and 2012 revisions to the CAFO regulation. Overall, these revisions have weakened the CAFO regulation.